BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DOOR COUNTY COURTHOUSE
LOCAL #1658, AFSCME, AFL-CIO
Insurance Coverage for Chiropractic Care
Mr. Grant Thomas, Door County Corporation Counsel, P.O.
Box 670, Sturgeon Bay,
Wisconsin 54307-3067, appearing on behalf of Door County.
Wisconsin Council 40, AFSCME, 8033 Excelsior Drive, Suite
B, Madison, Wisconsin 53717-1903, by Mr. James Miller
and Mr. Michael Wilson, Staff Representatives, appearing
of Local 1658.
Pursuant to the provisions of the collective bargaining agreement between the parties,
AFSCME Local 1658 (hereinafter referred to as the Union) and Door County (hereinafter
to as the Employer or the County) requested that the Wisconsin Employment Relations
designate a member of its staff as arbitrator to hear and decide a dispute concerning the
chiropractic coverage for unit employees. The undersigned was so designated. A hearing
on August 1, 2000, in Sturgeon Bay, Wisconsin, at which time the parties were afforded full
opportunity to present such testimony, exhibits, other evidence and arguments as were
the dispute. The parties submitted post-hearing briefs, which were received on September 6,
whereupon the record was closed.
Now, having considered the testimony, exhibits, other evidence, contract language,
of the parties and the record as a whole, the undersigned makes the following Award.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The issues before the Arbitrator are:
1. Is the grievance
substantively arbitrable? If so,
2. Did the Employer violate Article
18, Section F, of the collective bargaining
agreement when the Third Party Administrator denied certain chiropractic claims submitted
Christenson? If so,
3. What is the appropriate remedy?
. . .
ARTICLE 4 - GRIEVANCE
A. Definition of
Grievance: The parties agree that the prompt and just settlement of
is of mutual interest and concern. Should a grievance arise, whether in reference to a
interpretation of the Agreement or to a question relating to safety and/or other matters, the
employee shall first bring the complaint to the Steward or Grievance Committee of the
Procedure Steps: If it is determined after investigation by the Union that a
grievance does exist, it shall be processed in the manner described below.
Grievances shall be stated in writing, a copy of written grievances shall be given to the
Department Head and the Human Resources Director. The Steward shall meet with and
resolve the grievance with the Department Head and Human Resources Director within thirty
days after the grievant knew or should have known of the cause of such complaint. The
Head and the Human Resources Director shall answer the grievance in writing to the Union
within fifteen (15) days following notice of the existence of the grievance.
. . .
Step 3: The grievance shall be
submitted to arbitration by giving notice in writing to the
Employer within thirty (30) days after the written reply of the Executive and Personnel
Thereafter and within the following ten (10)
days, the Union and the Employer shall each select
one (1) member of a three (3) member Arbitration Board. The two (2) members of the
Board shall select the third (3rd) member who shall serve as Chairperson. If the third (3rd)
of the Arbitration Board is not selected within ten (10) days following the notice of the
the WERC upon submission of standard request form(s), shall be authorized to appoint the
Chairperson of the Arbitration Board from its staff.
. . .
ARTICLE 18 - INSURANCE
A. Health Insurance.
The Employer agrees to pay ninety percent (90%) of the premium costs
of the employee's family plan hospitalization and medical benefits insurance program for
with a spouse and/or dependents.
The Employer agrees to pay one hundred
percent (100%), or all of the premium costs of the
employee's single plan hospitalization and medical benefits insurance program for employees
a spouse or dependents.
Effective upon ratification by both parties,
the Employer agrees to pay ninety percent (90%), of
the premium costs of the employee's single plan hospitalization and medical benefits
program for employees without a spouse or dependents.
. . .
D. Change in Carrier:
Should there be any change in the insurance coverage or carrier,
contemplated by the Employer, the Employer shall notify the Union and meet to resolve such
problems as may arise.
. . .
Benefits: The County will maintain all benefits that were covered by Blue
as of 1986.
. . .
EXCERPTS FROM HEALTH INSURANCE PLAN
HEALTH AND DENTAL PROTECTION
MASTER PLAN DOCUMENT FOR
EMPLOYEES OF DOOR COUNTY
(Herein Called The Plan)
. . .
means a service or supply is required to treat or diagnose an
Injury or Sickness, and that it is:
1. consistent with and
appropriate for the symptoms, diagnosis or treatment of the patient's
2. of proven value or
usefulness, is likely to yield further information, and is not redundant when
done with other procedures.
3. the most appropriate means
to safely care for the patient. If an In-patient, it also means that
care can not safely be given on an out-patient basis;
4. not solely for the
convenience of the patient, the patient's family or the provider.
. . .
. . .
BLUE CROSS & BLUE SHIELD UNITED OF
. . .
DOOR COUNTY AND DOOR COUNTY HIGHWAY
. . .
MEDICALLY NECESSARY (OR MEDICAL
NECESSITY) - means that the services or
supplies provided by a HOSPITAL, PHYSICIAN, or OTHER PROVIDER are required to
or treat a MEMBER'S ILLNESS or
injury. The determination of whether a service or supply is
medically necessary will be made by
the PLAN based on the recommendations of its Health Policy Review Consultants and
the findings of a utilization review process that, according to generally accepted medical
services or supply is:
1. consistent with and
appropriate for the treatment or diagnosis of the MEMBER'S symptoms,
ILLNESS or injury;
2. of proven value or
usefulness, is likely to yield additional information, and is not redundant
when performed with other procedures;
3. the most appropriate level of
service or supply which can safely be provided to the
MEMBER. When applied to the care of an INPATIENT, it further means that the
MEMBER'S medical symptoms or condition require that the services cannot be safely
provided to the MEMBER as an OUTPATIENT; and
4. not primarily for the
convenience of the MEMBER, MEMBER'S family or the PROVIDER.
. . .
The Employer provides general governmental services to the people of Door County,
Wisconsin. The Union is the exclusive bargaining representative for many of the Employer's
including a bargaining unit of courthouse employees. The courthouse bargaining unit was
in 1986. At the time that the initial collective bargaining agreement was being bargained, the
was negotiating in another bargaining unit over a change from a Blue Cross health insurance
a self-funded plan. The negotiators for the courthouse unit agreed to insurance language
the benefits in effect under the Blue Cross Plan.
One of the benefits provided in the Blue Cross plan was chiropractic care and this
continued in the self-funded plan. Prior to 1999, there is no record of an employee having a
for chiropractic services rejected by the County's third party administrator. The County's
plan, like the Blue Cross plan, limits payment to those services that are medically necessary.
and 2000, several employees had claims rejected as not being medically necessary.
One of the employees who made claims for chiropractic services was Diane
Christenson works for the Department of Public Health and has been with the County for 23
She has seen a chiropractor off and on since 1995, owing to a variety of car accidents, falls
related injuries. Until March of 2000, none of her claims were
denied. In March, the County's third party administrator, Employee Benefit Claims of
("EBC"), sent her chiropractor's records of the case to Dr. Dennis King, a chiropractor it
with to review issues of medical necessity. Dr. King determined that the documentation of
did not suggest that further treatment would yield further improvement. Based on the
advised EBC that her treatments after December 16, 1999, were not medically necessary.
thereafter, declined to pay Christenson's chiropractor. The chiropractor submitted additional
documentation, showing that Christenson had fallen on ice in February of 2000, and EBC
some additional payments for treatments related to the falls, but still did not cover all of her
She has since paid for chiropractic services out of her own pocket.
Other employees had similar experiences in late 1999 and early 2000. Jeanne Kasten
another employee who had received chiropractic services. From 1986 through November of
she had never had a claim denied. In November of 1999, she received a letter from EBC
her doctor had not provided sufficient information to justify the treatment as necessary and
were denying payment. She contacted her doctor and he said he had supplied EBC with the
information they requested, but she has since paid for the treatments herself. Steven Graf, a
Operator for the County, was also advised in December of 1999 that Dr. King had
his chiropractic care was not medically necessary and payments were stopped.
Employee Christine Moe saw a chiropractor quite often in 1995. Towards the end of
year, EBC began denying her claims. According to Moe, she called EBC and was told that
a cap of 20 visits per year on chiropractic treatment. Moe reviewed the minutes of the
for 1994 and 1995, but could find no reference to any cap on chiropractic visits having been
by the Board.
Additional facts, as necessary, are set forth below.
ARGUMENTS OF THE PARTIES
The Position of the Union
The Union takes the position that the contract clearly and unambiguously requires the
to provide, under its self-insurance plan, benefits equal to those that had been offered under
Cross and Blue Shield plan in effect in 1986. Both plans contain essentially the same
medical necessity, and thus, the administration of both plans should yield identical treatment
identical claims. Here, however, it is apparent that the plan administrator has changed the
of chiropractic benefits. From 1986 through 1998, the evidence shows that no claim for
treatment was ever denied. Individuals were allowed to receive on-going regimens of
care, including Jeanne Kasten, who regularly and continuously received chiropractic care
to 1998, without any question being posed as to medical necessity. Beginning late in 1999,
for chiropractic care,
including Kasten's, began being rejected as not medically necessary. Grievant
a legitimate injury and then aggravated that injury in a fall, yet the plan administrator
Christenson's access to her chiropractor. This is not merely a neutral application of the
necessity language in the plan document. Instead, it represents a concerted effort by the
through its agent, the plan administrator, to reduce the benefits available to employees under
insurance plan. Such an effort violates the contract and the Arbitrator must order the County
and desist from its new practice, restore the status quo and make the affected employees
The Position of the Employer
The County takes the position that the grievance is beyond the authority of the
Arbitrator and must be
dismissed on jurisdictional grounds. Grievances enjoy a broad presumption of arbitrability,
but that presumption is
not unlimited. Here, the contract limits the Arbitrator to interpreting and applying the
contract and does not permit
additions, subtractions or modifications under the guise of interpretation. In the instant case,
the Union is not
contending that insurance benefits are not being provided, which is what the contract
guarantees. Instead, it disputes
the third party administrator's interpretation of the medical necessity language of the plan
document. That document
is not even arguably within the Arbitrator's purview. It contains its own protections and
appeal procedures, none of
which involve a grievance arbitrator. As there is no dispute under the labor agreement for
the arbitrator to decide, the
Arbitrator lacks subject matter jurisdiction.
Turning to the merits, the County asserts that the contract promises to continue the
insurance benefits in effect
as of 1986. The 1986 insurance plan excludes services that are not medically necessary.
Likewise, the current
insurance plan excludes any that are not medically necessary. The chiropractic services at
issue here were denied
because, after a medical review, they were determined not to be medically necessary. This
case by case determination
is something that is a feature of both insurance plans and since the plans are the same, there
is no violation of the
County's promise to maintain the same insurance benefits. Accordingly, the grievance
should be denied.
The question of whether a matter is subject to grievance arbitration goes to the
jurisdiction of the Arbitrator
and is a threshold issue that must be answered before any other aspect of the case may be
addressed. The County
asserts that the Union is seeking to have the Arbitrator make determinations of medical
necessity, determinations that
have no basis in the contract and which are reserved to the appeal procedures of the plan
Article 18 of the contract promises to provide health insurance and according to the
witnesses in this case,
Section F promises that the self-insured plan will maintain the level of benefits that were in
effect under the 1986 Blue
Cross indemnity plan. The Union's theory of this case is that the County, through its agent
EBC, is reducing benefits
for chiropractic care. In the simplest terms, the County used to treat all chiropractic
treatments as medically necessary
and reimbursable and it is no longer doing so in a deliberate effort to reduce benefits. The
County views that as a
misreading of the insurance plan, and it may be, but that does not render it non-arbitrable.
Certainly, an arbitrator is
not the proper venue for determining medical necessity in a given case. If the evidence
shows, however, that the
County's agent has adopted an overall policy of effectively reducing the employees'
insurance benefits, that course of
action implicates Section F of the contract and the mere use of the term "medical necessity"
to justify the reduction does
not prevent the Union from enforcing its right under Article 18. Regardless of the merits of
the Union's position, its
theory of the case raises a claim under the collective bargaining agreement, and I, therefore,
conclude that the matter
is substantively arbitrable.
The Merits of the Case
The issue on the merits of this case is whether the denial of chiropractic claims
beginning in late 1999
represents a reduction in the employees' insurance benefits. The claims of Christenson,
Kasten and Graf were denied
because the reviewing doctor determined that their chiropractor's documentation did not
prove that additional
treatments were medically necessary. It appears that none of these employees' claims had
ever been denied before late
Both the 1986 Blue Cross plan and the County's self-insurance plan exclude payment
for services that are not
medically necessary. There is no evidence in the record as to whether Blue Cross ever
denied a chiropractic claim as
medically unnecessary, but it clearly had the right to do so under the policy. 1/ The County
has reserved that same
right in its benefit plan, and has exercised it in these individual cases. The denials expressly
rely on medical necessity.
Medical necessity is a condition precedent to the payment of a claim under both plans.
While the right to determine
medical necessity may not have been invoked in the past, the decision to invoke it now
cannot be accurately
characterized as a change in benefits. It has always been a part of the benefit package.
1/ To the extent that the Union's theory is that
challenging the medical necessity of treatments represents a
change in practice, the lack of any evidence of Blue Cross's practice before 1986 is a fatal
defect in the record.
The right claimed by the Union is to receive the same benefits from EBC as were received
from Blue Cross.
Assuming solely for the sake of argument that a claim based on administrative practices
rather than the written
insurance plans themselves would have any validity, it requires a finding by the Arbitrator
that Blue Cross waived
its right to assert medical necessity as a pre-condition to receiving benefits, or at least never
denied a claim based
on medical necessity. In other words, in order to make out the case that EBC is doing
something differently, the
Union must provide evidence of what Blue Cross did with such claims.
The testimony of Christina Moe regarding the denial of her claims for chiropractic
care in 1995 presents a
different issue. According to Moe, she was told by EBC that the County would not pay for
more that 20 visits to a
chiropractor in any calendar year. A fixed cap on visits bears no relationship to the medical
necessity of treatment for
any individual patient and no plausible argument could be made that a cap is not a unilateral
reduction in benefits.
However, the contract requires that grievances be submitted within 30 days of the date on
which the violation was
known to the grievant and the time has long since passed for Moe to challenge the 1995
denial of her claims. There
was no reference to a cap of any type in the denials in 1999 and 2000, and the denial of
Christenson's claims was
plainly not caused by some sort of annual cap on visits, since it occurred early in the
calendar year. Thus, Moe's
experience is not relevant to the instant grievance.
In summary, the Union's claim that insurance benefits have been unilaterally reduced
by the County's
insistence on determining medical necessity presents an issue that is, on its face, arbitrable.
However, the right to
require that treatments and procedures be medically necessary in order to be covered by
insurance was an inherent
feature of the Blue Cross insurance policy and has been carried over into the County's
self-funded plan. Although it
may have come as an unwelcome surprise to these employees, it is not a change or reduction
in the level of benefits.
The determination of medical necessity in individual cases may be challenged through the
appeal procedures of the
plan administrator, but is not a grievable issue under the labor contract. A fixed cap on
chiropractic visits would be
a violation of the labor agreement, but the single instance in which this is alleged to have
been the basis for a denial
of claims took place five years ago and was not grieved at the time. There is no evidence
that any such cap exists today.
On the basis of the foregoing, and the record as a whole, I have made the following
1. The grievance is substantively arbitrable;
2. The Employer did not violate Article 18, Section F, of the collective
bargaining agreement when the
Third Party Administrator denied certain chiropractic claims submitted by Diane Christenson;
3. The Grievance is denied.
Dated at Racine, Wisconsin, this 8th day of December, 2000.
Daniel Nielsen, Arbitrator